# Thakur Gokal Chand v. Parvin Kumari

- **Citation:** [1952] 1 S.C.R. 825
- **Court:** Supreme Court of India
- **Decided:** 1952
- **Bench:** SAIYID FAzL Au, VMAN BosE
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/thakur-gokal-chand-v-parvin-kumari-70
- **Pages:** 15

## Headnote

Punjab custom-Principles to be observed
in
dealing
with
.customary law stated-Essentials of valid custom.
The plaintiff, a Rajput belonging to Tehsil Garhshankar in
the District of Hoshiarpur (Punjab), instituted a suit against the
defendant for the recovery of the properties which belonged to
.a deceased Gurkha woman R and which she had acquire~ by way
.of gift from a stranger, alleging that he was the lawfully wedded
husband of R and that according to custom which applied to the
parties with regard to succession he was entitled to succeed to the
move,able and immoveable properties of R in preference to the
defendant who was his daughter by R.
Held, that even if it be
.assumed that R was lawfully married to the plaintiff, the question to be decided would be whether succession to property
which R had received as a gift from a stranger and which she
.owned in her own right would be governed by the custom governing her husband's family and hot her own.
Such marriage as was
.alleged to have been contracted
by the plaintiff being evidently
an act of rare occurrence, the rule of succession set up by the
plaintiff cannot be said to derive its force from long usage and
.the plaintiff was not, in any
even~, entitled to succeed.
Their Lordships laid
down
the
general
principles which
should be kept in view in dealing with questions of customary
law as follows :
(1) It should be recognised that many of the agricultural
tribes in the Punjab are governed by a variety of customs, which
depart from the ordinary rules of Hindu and Muhammadan law,
:in regard to inheritance and other matters mentioned in section 5 of the Punjab Laws Act, 1872.
(2) In spite of the above fact, there is no
presumption
that
·a particular person or class of persons is governed by custom,
and a party who is alleged to be governed by customary law
must . prove that he is so governed and must
also
prove
the
existence of the custom set up by him. (See Daya Ram v. Sohel
Singh and Others, 110 P.R. (1906) 390 at 410; Abdul Hussein Khan
v. Bibi So.na Dero, L.R. 45 I.A. 10).
(3) A custom, in order to be binding, must derive its force
from the fact that by long usage it has obtained the force of law,
but the English rule that "a custom, in order that it may be
legal and binding, must have been used sci long that the memory
.of man runneth not to the contrary" should not be strictly
~952
May 16.
1952
Thakur Gokal
Chand
v.
Parvin Kumari.
826
SUPREME COURT REPORTS
[1952]
applied to Indian conditions. All that is necessary to prove is
that the usage has been acted upon in practice for such a long
period and with such invariabjlity as to show that it has, by
com111on consent, been submitted to as the established governing
rule of a particular locality. (See Mt. Subhani v. Nawab, A.LR.
1941 P.C. 21 at 32).
.
( 4) A custom may be proved by general evidence ns to its.
existence by n1embers of the tribe or family who would naturally be cognizant of its existence and its exercise without
controversy., and such evidence n1ay be safely acted on when it is:
supported by a public record of custom such as the Riwaj-i-am,
or Manual of Custo!Jlary Law. (See Ahmad Khan v. Mt. Channi
Bibi, A.LR. 1925 P.C. 267 at 271).
(5) No statutory presumption attaches to the contents of at
Ri\vaj-i-atn or similar compilation, but being a public record
prepared by a public officer in the discharge of his duties under
Government rules, the statements to be found therein in support of custom are admissible to prove facts
recited therein
and'
will generally be regarded as a strong piece of evidence of the·
custotn.
The entries in the llhvaj-i-am may however be proved'
to be incorrect, and the quantum of evidence required for the
purpose of rebutting them wilL vary with the circumstances of
each case.
The presumption
of
correctness attaching
to
a·
Riwaj-i-am may be rebutted, if it is shown that it affects adversely the rights of females or any other class of persons
who had·
no opportunity of appearing before t

## Text

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S.C.R.
SUPREME COURT REPORTS
825
THAKUR GOKALCHAND
ti.
PARVIN KUMAR!
[SAIYID FAzL Au and VMAN BosE JJ.]
Punjab custom-Principles to be observed
in
dealing
with
.customary law stated-Essentials of valid custom.
The plaintiff, a Rajput belonging to Tehsil Garhshankar in
the District of Hoshiarpur (Punjab), instituted a suit against the
defendant for the recovery of the properties which belonged to
.a deceased Gurkha woman R and which she had acquire~ by way
.of gift from a stranger, alleging that he was the lawfully wedded
husband of R and that according to custom which applied to the
parties with regard to succession he was entitled to succeed to the
move,able and immoveable properties of R in preference to the
defendant who was his daughter by R.
Held, that even if it be
.assumed that R was lawfully married to the plaintiff, the question to be decided would be whether succession to property
which R had received as a gift from a stranger and which she
.owned in her own right would be governed by the custom governing her husband's family and hot her own.
Such marriage as was
.alleged to have been contracted
by the plaintiff being evidently
an act of rare occurrence, the rule of succession set up by the
plaintiff cannot be said to derive its force from long usage and
.the plaintiff was not, in any
even~, entitled to succeed.
Their Lordships laid
down
the
general
principles which
should be kept in view in dealing with questions of customary
law as follows :
(1) It should be recognised that many of the agricultural
tribes in the Punjab are governed by a variety of customs, which
depart from the ordinary rules of Hindu and Muhammadan law,
:in regard to inheritance and other matters mentioned in section 5 of the Punjab Laws Act, 1872.
(2) In spite of the above fact, there is no
presumption
that
·a particular person or class of persons is governed by custom,
and a party who is alleged to be governed by customary law
must . prove that he is so governed and must
also
prove
the
existence of the custom set up by him. (See Daya Ram v. Sohel
Singh and Others, 110 P.R. (1906) 390 at 410; Abdul Hussein Khan
v. Bibi So.na Dero, L.R. 45 I.A. 10).
(3) A custom, in order to be binding, must derive its force
from the fact that by long usage it has obtained the force of law,
but the English rule that "a custom, in order that it may be
legal and binding, must have been used sci long that the memory
.of man runneth not to the contrary" should not be strictly
~952
May 16.
1952
Thakur Gokal
Chand
v.
Parvin Kumari.
826
SUPREME COURT REPORTS
[1952]
applied to Indian conditions. All that is necessary to prove is
that the usage has been acted upon in practice for such a long
period and with such invariabjlity as to show that it has, by
com111on consent, been submitted to as the established governing
rule of a particular locality. (See Mt. Subhani v. Nawab, A.LR.
1941 P.C. 21 at 32).
.
( 4) A custom may be proved by general evidence ns to its.
existence by n1embers of the tribe or family who would naturally be cognizant of its existence and its exercise without
controversy., and such evidence n1ay be safely acted on when it is:
supported by a public record of custom such as the Riwaj-i-am,
or Manual of Custo!Jlary Law. (See Ahmad Khan v. Mt. Channi
Bibi, A.LR. 1925 P.C. 267 at 271).
(5) No statutory presumption attaches to the contents of at
Ri\vaj-i-atn or similar compilation, but being a public record
prepared by a public officer in the discharge of his duties under
Government rules, the statements to be found therein in support of custom are admissible to prove facts
recited therein
and'
will generally be regarded as a strong piece of evidence of the·
custotn.
The entries in the llhvaj-i-am may however be proved'
to be incorrect, and the quantum of evidence required for the
purpose of rebutting them wilL vary with the circumstances of
each case.
The presumption
of
correctness attaching
to
a·
Riwaj-i-am may be rebutted, if it is shown that it affects adversely the rights of females or any other class of persons
who had·
no opportunity of appearing before the revenue authorities.
(Sec
Beg v. Allah Ditta, A.LR. 1916 P.C. 129 at 131; Saleh Mohammad
v. Zawar Hussain, A.LR. 1944 P.C. 18 ; Mt. Subhani v. Nawab•
A.LR. 1941 P.C. 21 at 25).
{ 6} When the question of custom applicable to an agriculturist is raised, it is open to a party who denies the application of
custom to show that the per·son who claims to be governed by
it
has completely and permanently drifted away from
agriculture·
and agricultural associations and settled for good in urban life·
and adopted trade, service, etc., as his principal occupation anc;I"
means and source of livelihood, and does not follow other custo1ns applicable to agriculturists.
(See Muhammad Hayat
Khan·
v. Sandhe Khan and Others, 55 P.R. (1906) 270 at 274;
Muzafjar
Muhammad v. Imam Din, I.L.R. (1928) 9 Lah. 120, 125).
(7) The opinions expressed by the compiler of a Riwaj.i.am
or Settlement Officer as a result of his intimate knowledge and'
investigation· of the
subjec~ are entitled to weight which will
vary with the circu1nstances of each case. The only safe rule· toe
be laid· down with regard· to the weight to be attached to the··
con1piler's re1narks is that if they represent his personal opinion
or bias and detract from the record of. long standing custom,
they will not be sufficient to displace the custom, but if they are·
the result of his inquiry a"nd· investigation- as to the scope of. the~
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S.C.R.
SUPREME COURT REPORTS
827
applicability of tbe custom and any special sense in which tbe
1952
exponents of the custom expressed themselves in regard to it,
such remarks should be given due weight. (See N«rain Singh v. Thakur Gokal
Mt. Basant Kaur, A.I.R. 1935 Lah. 419 at 421, 422; Mt. Chinto v.
Chand
Thelur, A.I.R. 1935 Lah. 985; Khedam Hussain
v.
Mohammad
v.
Hussain, A.I.R. 1941 Lah. 73 at 79).
Parvin Kumari.
CrvrL
APPELLATE
JurusorcrroN :
Civil
Appeal
No. 158 of 1951. Appeal from the judgment and decree
dated 24th March, 1948, of the High Court of Punjab
at Simila (Teja Singh and Khosla JJ.) in Regular
First Appf'.al No. 133 of 1945 arising out of judgment and decree dated 25th November, 1944, of the
Court of the Senior Subordinate Judge, Kangra, at
Dharmsala in Suit No. 86 of 1943.
Daryadatta Chawla for the appellant.
Gurbachan Singh (Jindra Lal, with him), for the
respondent.
1952. May 16. The Judgment of the Court was
delivered by
FAZL Au J.-This is an appeal against the judgment and decree of the High Court of Punjab at Simla
reversing the judgmeμt and decree of the Senior Subordinate Judge of Kangra in a suit instituted by the
appellant for a declaration that he was the sole lawful
heir of one Musammat Ram Piari, whom he alleged to
be Pis wife, and as
1 such was entitled to the properties
left by her, and for possession of those properties •.
The suit was instituted against 2 persons, namely,.
Parvin Kumari, who was alleged to be the daughter
of the plaintiff by Ram Piari, and Shrimati Raj
Kumari, who were respectively impleaded as defend-·
ants Nos. 1 and 2.
The case of the plaintiff as set out in the plaint was:
that he was married to Ram Piari, the daughter of an
employee of Raj Kumari (defendant No. 2) about 22·
years before the institution of the suit, that after
marriage she lived with him at Hoshiarpur and gave
birth to a daughter, Parvin Kumari (defendant No. 1 ),.
on the 4th March, 1929, and that Ram Piari died ia
1952
Thakur Gokal
Chand
.v.
Parvin KumOri.
Faz/ Ali].
828
SUPREME COURT REPORTS
[1952]
April, 1941, leaving both movable and immovable
properties which she had acquired in her own name
with the aid of his money and which had been taken
·possession of by Raj Kumari. He further alleged that
he was
a Rajput
by caste
belonging
to
tehsil
Garhshankar in the district of Hoshiarpur, and was
governed by custom in matters of
~uccession, and,
according to that custom, he, as the husband of the
deceased Ram Piari, was entitled to the movable and
immovable · properties left by ·her to the exclusion of
Parvin Kumari, her daughter.
. The suit was contested by both Parvin Kumari and
Raj Kumari, and both of them denied that the appellant h)ad been mart1ied to Ram Piar~. Their case was
that the properties in suit were acquired by Raj
Kumari with her own money for Ram Piari, that
the latter had made a will bequeathing them to her
<laughter, Parvin Kumari, that the appellant was not
governed by c~tom, and that in any event the alleged
custom could not apply to the personal and selfacquired property of Ram Piari. As regards 2 cars
which were also included .in the list of properties
daimed in the plaint, the case of Raj Kumari was
that they belonged to her and that the deceased was
only a benarnidar.
' The trial court decreed the plaintiff's suit with
respect to all the properties excepting the 2 cars which
were held to belong to Raj Kumari. The court held
that Ram Piari was the legally married wife of the
appellant, that · he was governed by customary law
applicablle . to Rajputs . of Hoshiarpur disttict i'n matters
.of succession, ·and that according to that customary
law he was the· preferential heir to the ·estate ·of Ram
Piari. J:'he court further held. that the will of Ram
Piari was invalid as. she had no power under the
.~ustomary law to make a will.
Both the . ·defendants appealed to the High Court
against the judgment of the· trial court, and the appeal
was ultimately allowed and the plaintiff's suit was
.clismissed. The High Court held that though there
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'S.C.R.
SUPREME COURT REPORTS
829
was evidence of long cohabitation of the plaintiff and
Ram Piari giving ris,e to a presumption of marriage,
yet that presumption had been completely rebutted
.and the proper conclusion to be arrived at on the
evidence on record was that the plaintiff had not been
able to prove that Ram Piari was his lawfully wedded
wife. As to custom, the findings of the High Court
were as follows:-
( 1) that the appellant belonged to an agricultural
tribe of Hoshiarpur district and was therefore govern-
·ed by the custom prevailing among the Rajputs of
that district;
(2) that there was no local or general custom
allowing the plaintiff to succeed in preference to the
daughter to the property left by Ram Piari which had
been given to her by a stranger, namely, Raj Kumari;
.and
(3) that the parties were governed by
Hindu law
ci:ider which Parvin Kumari being the daughter of
Ram ' Piari was entitled to succeed to the properties
left by the latter in preference to the plaintiff.
Against the decision of the High Court, the plaintiff
has now
preferred
this appear,
after obtaining a
.certificate from the High Court under sections 109 and,
110 of the Code of Civil Procedure.
The first question which arises in this appeal is
whether the plaintiff has succeeded in proving that
Ram Piari was his legally wedded wife. The plaintiff
was admittedly employed as a copyist in the District
Judge's court at Hoshiarpu.r and was living in that
town. His case was. that he gained the acquaintance
of Raj Kumari (defendant No. 2), a wealthy lady of
Kangra district who owned a tea estate in tehsil
Palampur and
occasionally
visited
Hoshiarpur, and
through her good offices was married to Ram Piari,
who was the daughter of one Chandar Bir, an em-
:ployee of Raj Kumari working in her tea estate. After
marriage, ' Ram Pfari
live~ w:iith -the
plainitiff at
Hoshiarpur as his lawfully wedded wife, and a daughter,
.Parvin Kumari, (also called Usha Rani), was born to
1952
Thakur Gok.al
Chand
".·
Parvin, 11:.um,ari.
Fazl 4li /.
1952
Thakur Gokal
Chand
v.
Parvin Kumari.
Faz/Ali].
830
SUPREME COURT REPORTS
[1952J
them on the 4th March, 1929. Raj Kumari had great
attachment towards Ram Piari and often used to pay
visits to Hoshiarpnr to meet her. In the year 1934-35
(no date is mentioned in the plaint; but this year is
mentioned in
the plaintiff's evidence), Raj Kumari
took Ram Piari from the plaintiff's house with belongings of every description on the pretext of taking her
out for recreation. Ram Piari did not like going round
with Raj Kumari and though she wanted to come
back to the plaintiff s;he had not the courage to disobey
Raj Kumari, and in fact Ram Piari and Raj Kumari
inwardly hated one another during the last years of
the former's life. In the year 1941, Ram Piari died at
Mayo Hospital at Lahore, leaving the properties in
dispute which had been acquired by her by good
management with the plaintiff's own money.
As against this version of the p~aintiff, ithe case of
Raj Kumari was that Ram Piari had peen enticed
away by a motor driver sometime in 1921, that she
returned to Holta estate after about 11 years with.
Parvin Kumari who was; then about 3 years old, and
after her return both she and her daughter remained'
with her (Raj Kumari) till Ram Piari died in 1941..
Raj Kumari, being a widow, felt very lonely and so·
brought up Ram Piari as a companion and all the·
properties in dispute had been acquired by her with,
her own money for the benefit of Ram Piari. Parvin
Kumari had been educated and brought up at her ex-·
pense, and it was entirely false that she and Ram
Piari inwardly hated each other,
the truth
being that
they liked and were attached to each other.
The evidence adduced by the plaintiff to prove that
Ram Piari was his lawfully wedded wife consists
partly of the evidence of a number of witnesses and
partly of circums1tantial evidence. The direct evidence
of marriage is furnished by Babu Ram, P. W. 7,
Arrant Ram, P. W. 11, Babu, P. W. 12, and Asa Ram,.
P. W. 13. Babu Ram claims to be the family priest
and alleges to have officiated as priest at the time of the
plaintiff's marriage. Anant Ram and Asa Ram are
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S.C.R.
SUPREME COURT REPORTS
831
jaswal Rajputs residing in village Bham, which 1s near
the plai,ntiff's village, Ajnoha, and Babu is a barber.
These four persons have said that they accompanied
the marriage party and that the marriage of the plaintiff with Ram piari was celebrated in their presence.
The evidence of the other witnesses and the circumstantial evidence upon which reliance has been placed
by the plaintiff have been summarized by the learned
Subordinate Judge in his judgment in these words:-
"P. W. 5 Mukhi Ram is a Municipal Commissioner at Hoshiarpur. P. W. 4 Doctor Shadi Lal is a
leading Medical Practitioner of Hoshiarpur. P. W. 9
Lala Sham Lal and P. W. 10 Lala Har Narain have
been co-employees with the plaintiff in the same office;
though these persons (except P. W. 9) have no social
relations with the plaintiff and his family, yet they
have been seeing Ram Piari living with plaintiff as
his wife. She was proclaimed as such by the plaintiff
and both of them were treated as husband and wife
by the people of the Mohalla and by the brotherhood
in the
village of plaintiff. Exhibits
P-18 and P-19
show that defendant No. 2 has been addressing Ram
Piari, care of plaintiff in 1932 and has heen receiving
correspondence, care of the plaintiff which shows that
she approved of the plaintiff's alliance with Ram Piari
.... Paras Ram, a younger
brother
of Ram
Piari~
lived in the house of Gokal Chand and it is in evidence that he used to address the plaintiff as jija-a
common name for
sister's husband. From
1930 to
1934 Paras Ram read in the D.A.V. High School at
Hoshiarpur and Exhibits P. W. 6/1 to 6 are copies
• of entries in the registers of the school regarding applications which were given by Gokal Chand, plaintiff,
for admiss.ion of his ward Paras Ram, son of Chandar
Bir who was described as his sal.a (wife's brother).
P. W. 6 Lala Bishan Das, teacher,
ha~ filed these
copies. His sister's, house was adjacent to the house
of the plaintiff and he had occasions to see Ram Piari
living and being treated as wife by the plaintiff during
those years."
1952
Thakur Gokal"
Chand
·v.
Parvin Kumari.
Fazl Ali f.
1952
Thakur Gokal
Chand
v.
'f'arvin Kumari.
]?azl Ali/.
832
SUPREME COURT REPORTS
[19521
Upon the evidence to which ll"eference has been
)Ilade, the trial court came to· the conclusion that Ram
Piari was the legally married wife of the appellant.
The learned judges of the High Court however found
the evidence of the 4 witness.es who claimed to have
been present at the marriage of the plaintiff to be quite
unconvincing, and they pointed
out that the
case of
the plaintiff being that his marriage had been performed with great pomp and show, it was surprising that
the evidence . relating ·to . it should be confined to 4
persons one of whom appeared to be a 'hired witness'
and the other 3 were interested persons.
As io the evidence of the 4 pers,ons who claim to
have been present at the plaintiff's marriage, we find
ourselves in agreement with the view taken by the
High Court. The evidence of the other witnesses undoubtedly establishes the fact that for some years the
plaintiff and Ram Piari lived together as husband and
wife and were treated as
such, that Paras Ram,
brother of Ram Piari, addres.sed the plaintiff as jija (a
common name for sister's husband), and that the plaintiff acted as Paras Ram's guardian when the latter. was
admitted to D.A.V. School and was described as his
brother-in-law in some of the entries in the school register. The learned Judges of the High Court considered
that the evidence of .certain
witne~ses who deposed
to some of· the facts on which the lower court relied,
did not strictly comply with the requirements of section 50 of the Indian Evidence Act, firstly because the
witnesses had no special means of knowledge on the
subject of relationship between the plaintiff and Ram
Piari, and secondly because what section 50 made
relevant was not mere opinion but opinion "expressed
by conduct" of persons who as members of the family
or otherwise, had special means;
of knowledge. It
seems to us that the question as to how far the evidence of those particular witnesses is relevant under
section 50 is academic, because it is well-s.ettled that
continuous cohabitation for a number of years may
raise the
presumption of
marriage. In the
present
case, it seems clear that the plaintiff and Ram Piari
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S.C.R.
SUPREME COURT REPORTS
833
lived and were treated as husband and :wife for a number of years, and, in the absence of any material
pointing to the contrary conclusion a presumption
might have
been drawn that they were lawfully
married. But the presumption which may be drawn
from long cohabitation is rebuttable, and if there are
circumstances which weaken or destroy that presumption, the court cannot ignore them. We -agree with
the learned Judges of the High Court that in the present case, such circumstances are not wanting, and
their cumulative effect warrants the conclusion that
the plaintiff has failed to prove the factum of his
marriage with Ram Piari. In the .first place, the
plaintiff has not examined any of his near relations
such as his brother, or collaterals living in Ajnoha, or
any co-villagers, whose presence at the ·marriage would
have been far more probable than the presence of the
witnesses examined by him. He has also not examined any of the witnesses residing in or round about
Holta estate in spite of the fact that his own case is
that the marriage was celebrated with great pomp and
show. It was suggested in the courts below that since
defendant No. 2 is an influential person, no local witnesses would be available
to support the
plaintiff's
case, but the High Court has very fully dealt with this
aspect and pointed out .firstly that Raj Kumari had
had litigation with a number of persons belonging to
Palampur and such persons would not be under her
influence, and secondly that no good reason has been
shown why Raj Kumari, who is alleged to have brought
about the marriage between the plaintiff and Ram
Piari,
should
take
a
completely
hostile
attitude
towards him. Then again, neither the parents nor
any of the relations of Ram Piari have been examined
to support the plaintiff. - On the other hand, Ram
Piari's own mother, Ganga, has deposed that the former was never married to the plaintiff, and the statement made by Ram Piari in her will, which is a very
valuable piece of evidence, . is to the same effect. It is
also incredible that in spite of the love which Ram
Piari is said to have had for the plaintiff, she left him
.1952
Thakur Gokal'
Chand
•. v.
Parvin Kumari. ,
, Faz/ Ali/.
1952
:Thakur Gokal
Chand
. v.
Parvin Kumari.
Faz/ AU/.
:834
SUPREME COURT REPORTS
[1952]
and went away to live with Raj Kumari, and that
during the long period when Ram Piari was away, the
.plaintiff should never have visited her or made enquiries -about her and
hisi
alleged daughter,
Parvin
Kumari. This is all the more strange, since it is
stated hy the plaintiff that Ram Piari continued to
love him and that she and Raj Kumari inwardly hated
each other. Parvin Kumari
says in her deposition
.that she had never seen her father and -that when she
•eached the age of discretion
she found herself living
at :Palampur. The conduct of the plaintiff -in showing
such complete indifference to his wife and daughter
as is disclosed in his evidence is most unnatural, and
.no less unnatural is his conduct in instituting a suit to
.deprive :her of properties which had come into her
hands not by reason of anything done by him but as a
result of the generosity shown towards her by a stranger. The plaintiff's case that the properties in dispute
were acquired by 'Ram 'Piari iwlth the · aid of his
money is wholly untrue, and it has been rightly found
by both the courts that they were acquired for her by
Raj Kumari. The plaintiff's witnesses have tried to
exaggerate his means to support his case, but the
truth appears to be that he had hardly any means of
his own beyond the somewhat meagre salary which he
.us.ed to draw as a court typist.
Several of the witnesses including and Advocate and
Ram Piari's own mother have deposed that Ram Piari
had eloped with a driver and had remained away from
Holta .estate for a number of years. Even the Subordinate Judge has not rejected the story of elopement,
and though there is no reliable evidence as to when
and how she met the plaintiff, the possibility of her
having lived with him for some years. even though
they were not legally married, cannot be ruled out.
The plaintiff claims ta be a Rajput of high caste, and
it appears ta us rather unusual that he should not
marry in _his own tribe but should take in marriage a
Gurkha girl who was born of very poor parents and
belonged tci a place far away from where he himself
lived.
_,__
•
:S,C.R.
SUPREME COURT REPORTS
835
The fact that Paras Ram lived. with the plaintiff for
.some time and addressed the latter as jija,
and that
the plaintiff
d<!S!Cribed
himself
as guardian
and
·brother-in-law of Paras Ram, is as consistent with the
. defence version as with the plaintiff's. If Paras Ram's
parents had been in affluent circumstances so as to be
:able to maintain and educate him, ,the case would
have been different, but there is evidence to show that
-Chandar Bir was very poor and both his wife and
-daughter had to work as servants of Raj Kumari to
.earn their living.
In our opinion, the conclusiGn arrived at by the
·High Court has not been shown by the plaintiff to be
'incorrect, and whatever the true facts may be,
we are
compelled to hold that in the present state of evidence
·rhe plaintiff has not s.ucceeded in establishing that
~am Piari was his legally wedded wife.
In the view we have taken, it is not necessary to
deal with the question
whether succession to the properties in dispute will be governed by customary law
•Of by Hindu law, but since it was argued before us at
·very great length, we think that we might state the
contentions
of
the
parties
and
the
difficulties
which in our opinion arise in dealing with ·those contentions on the material before us. Before doing so,
however, we wish to set out briefly certain general
principles which we think should be kept in view in
dealing with questions of customary law. They may
be summarized as follows:-
(1) It should be recognized that many of the
agricultural tribes in the Punjab are governed by a
-:variety of customs, which depart from the ordinary
·rules of Hindu and Muhammadan law, in regard to
inheritance and other matters mentioned in seetion 5
•of the Punjab Laws Act, 1872.
(2) In spite of the above fact, there is no presumption that a particular person or class of persons
is governed by custom, and a party who is alleged to
be governed by customary law must prove that he is
·so governed ~nd must also prove the existence of the
1952
Thakur Gokal
Chand
v ..
Parvin Kumari.
Fazl Ali].
1952
Thakur G~ktil
Chand
v~ .
Parvin Kumar;.
Fazl Ali/.
836
. SUPREME COURT REPORTS
[19521
custom s.et up by him. See Daya Ram v. Sahel Singh and'
Ot·hers('), Abdul Hussein Khan. v. Bibi Sana Dero(2).
(3) A custom, in order to be binding, must derive·
its force from the fact that by long usage it has obtained the force of law, but the English rule that · "a.
custom, in order that it may be legal and binding,.
must have been used so long that the memory of man
runneth not to the contrary" should not be strictly
applied to Indian conditions. All that is. necessary to·
prove is that the usage has been acted upon in practice
for such a long period and with such invariability as.
to show that it has, by common consent, been submitted to as the established governing rule of a particular locality. See Mt. Subhani v. Nawab(3).
( 4) A custom may be proved by general evidence as to its exil;,tence by members of the tribe or
family who woul:<l naturallyi be cogniiant Of ilts existence and its exercise without controversy, and such
evidence may he safely acted on when it is supported
by a public record of custom such as the Riwaj-i-am
or Manual of Customary Law. See Ahmad Khan v.
Mt. Channi Bibi(').
(5) No statutory presumption attache11 to the con.
tents of a Riwaj-i-am or similar compilation, hut being
a public record prepared by a public officer in the discharge of his duties under Government rules, the statements to be found therein in support of custom are
admissible to prove facts recited therein and will
generally be regarded as a strong piece of evidence of
the custom. The entries in the Riwaj-i-am may however be proved to be incorrect, and the quantum of
evidence required for the purpose of rebutting them
will vary with the circumstances of each case. The·
presumption of correctness attaching to a Riwaj-i-am
may be rebutted, if it is shown that it affects adversely the rights of females or any other class of persons
who had no opportunity of appearing before the revenue authoritiei;. See Beg v. Allah Ditta('), Saleh.
(1) llO P.R. (1906) 390 at 410. (4) A.I.R.1925 P.C. 267 at271. ·
(2) L.R. 45 I.A. 10.
(5) A.LR .. 1916 P.C. 129 at 131.
(3) A.I.R. 1941 P.C. 21 at 32.
·
S.C.R.
SUPREME COURT REPORTS
837
Mohammad v. Zawar Hussain(1); Mt. Subhani v.
Nawab(2).
( 6) When the question of custom applicable to an
agriculturist is raised, it is open to a party who denies
the application of custom to show that the person who
claims to be governed by it has completely and permanently drifted away from
agriculture
and
agricultural associations and settled for good in urban life
and
adopted
trade,
service,
otc.,
as
his
principal
occupation and means and source of livelihood, and
does not follow other customs applicable to agriculturists.
See Muhammad Hayat Khan v. Sandhe Khan
and Others(3), Muzaffar Muhammad v. Imam Din(4).
(7) The opinions expressed by the compiler of a
Riwaj-i-am or Settlement Officer
~ a result of his
intimate knowledge and investigation of the subject,
are entitled to weight which will vary with the circumstances of each case. The only safe rule to be laid
down with regard to the weight to be attached to the
compiler's remarks is that if they represent his personal opinion or bias and detract from the record of
long-standing custom, they wlll not be sufficient to
displace the custom, but if they are the result of his
inquiry and investigation as to the scope of the applicability of the custom and any special sense in which
the exponents of the custom expressed themselves in
regard to it, such remarks should be given due weight.
See Narain Singh v. Mt. Basant Kaur( 5 ), Mt .. Chinto v.
Thelur( 6 ); Khedam Hussain v. Mohammad Hussain(').
Bearing these principles in mind, the difficulty
which appears to us to beset the case of the plaintiff
may be briefly stated as follows :-
The basis of the plaintiff's case is that the custom
by which he claims to be governed is a "zamindara
custom" and he is governed by it by reason of his belonging to a family of agriculturists. From the evidence, however, it appears that he had sold most, if not
(1) A.LR. 1944 P.C. 18.
(5) A.LR.1935 Lah. 419 at
(2) A.LR. 1941 P.C. 21 at 25.
421, 422.
(3) 55 P.R. (1906) 270 at 274.
( 6) A.LR. 1985 Lah. 985.
(4) I.LR. (1928) 9 Lah. 120, 125. (7) A.LR. 1941 Lah. 73 at 79.
5-9 S.C. India/71
1952
Thakur Gokal
Chand
v.
Parvin Kumari.
Faz/ Ali J.
1952
Thakur Gokal
Chand
v.
Parvin Kumari.
Fazl Ali/.
838
SUPREME COURT REPORTS
[1952]
all, of . his property in the village to which he belonged,
that his ancestors
were bankers or sahukars,
that his
father was a clerk of a lawyer practising in Hoshiarpur
d(strict and that he himself was a clerk in the district
Judge's court at Hoshiarpur and lived there, and there
is hardly any evidence to show that any of his relations was dependent on agriculture or that he maintained
connection with them.
In our opinion, the
witnesses of the plaintiff have tried to grossly exaggerate his pecuniary means and have not given a
correct picture on which the answer to the question as
to whether he would still be governed by the old
custom would depend. Again, though according to
the answer to question 11 in the Riwaj-i-am of Hoshiarpur
district,
the
general custom
governing
the
Rajputs of that district would seem to be that a
marriage within the tribe only is lawful,
the plaintiff
did not marry a Rajput of his district but is said to
have married a Gurkha woman, about whose caste
and character the evidence is conflicting, and whose
family was admittedly not governed by the "Riwaj-iam" upon which the plaintiff relies. If both the
husband and the wife are shown to belong to the same
tribe and to be governed by the same custom, then
the difficulty in deciding what would be the rule of
succession on the death of the wife in regard to the
wife's self-acquired property may not be very great.
But even if it be assumed that Ram Piari was lawfully married to the plaintiff, the serious question to
be decided would be w he th er succession to tbe property which Ram Piari received as gift from a stranger
and which she owned in her own right, would be
governed
by the
custom governing
her husband's
family and not her own. Such marriage as is said to
have been contracted by the plaintiff being evidently
an event of rare occurrence,
the rule of succession set
up by him cannot be said to derive its force from long
usage. As we have pointed out, a custom in order to
be binding must derive its force from the fact that by
long usage it has obt;i,ined the force of law; and if an
occasion never arose to apply the rule of succession
•
S.C.R.
SUPREME COURT REPORTS
839
invoked by the · plaintiff, to the property held by
a wife in her own right, the foundation on which
custom grows would be wanting. When the matter
is further probed, it appears that the plaintiff relies not
only on custom but partly on custom and partly on
the rule of Hindu la:w, namely, that the law which
governs
the
husband
will
govern
the
wife , also.
Whether the latter rule can be extended to a case like
the present ~ a question of some difficulty, on which,
as at present advised, we would reserve our opinion.
In the circumstances, we prefer to leave the issue of
custom undecided, and base our decision on the sole
ground, which by itself is sufficient to conclude the
appeal, that the plaintiff's marriage with Ram Piari
has not been clearly established.
The appeal therefore fails and it is dismissed, but
in the circumstances of the e;ase and particularly since
the appellant has appealed in f orma pauperis, we
direct that the parties will bear their own costs in all
the courts.
Appeal dismissed.
Agent for the appellant: S. D. Sekhri.
Agent for the respondent: Naunit Lal.
LACHMAN SINGH AND OTHERS
v.
THE STATE
[SAIYID FAzL Au and VIVIAN BosE JJ.]
Evidence Act (1 of 1872), sec. 27-Statements of several accused
leading to
discoveries-Admissibility-Necessity of
proof
as to
which statement was made first-Scope of sec. 27.
Three persons K, M and S, who were accused of murder ·
made statements to the police which disclosed that the dead
bodies after being dismembered were thrown into a stream and
the police party thereafter went with the three accused to the
stream where each of them pointed out a place where different
1952
Thakur Gokal
Chand
v.
Parvin Kumari.
Fazl Ali f.
1952
March 21.